Professor Amici and Walker v. Martin

Adam Liptak has this article in the NYT on the subject of law professor amicus briefs and Richard Fallon's much-discussed essay. I have a personal interest in this part of the story:

In his essay, Professor Fallon discussed a second brief he had declined to join. It concerned "a highly complex question of federal jurisdiction over a habeas corpus petition filed by a prison inmate" and was written by Michael C. Dorf, a law professor at Cornell.

Professor Fallon said the brief was in all likelihood
"exemplary in all respects." But he said he would not sign that one,
either, on the refreshing ground that he had not done the required
reading.

"Of the dozens of Supreme Court decisions to which the
brief referred, there were some that I know well, and others I recall
only hazily," he wrote. "The brief also cited at least nine Supreme
Court cases that I cannot remember ever having read at all, and 12 lower
court decisions that I know I have never read."

"It seems
pertinent," he added, "that my instinctive sympathy for the asserted
position -- and thus my impulse to want to sign -- had ideologically
based foundations."

In an e-mail, Professor Dorf said that he,
too, had long been suspicious that "law professor briefs were attempting
to leverage scholarly reputations for political/ideological ends."

"I
prefer not to be asked to sign such briefs, but because I do sign some,
I worry that not signing may be taken as disagreement," he wrote.
"Finding it harder than Dick does to say no, I cannot afford to be as
scrupulous as he. I admire him on both counts, but I guess I'm just
weak."

The case was Walker v. Martin, and Dorf's brief
was a direct response to my brief for CJLF, a brief that reiterated a
position I had been promoting for a long time, urging the Court to clean
up its confusing jurisprudence on when a state procedural default rule
is "adequate" to preclude federal court review of a defaulted claim. My
brief cited (you guessed it) Fallon, Meltzer, & Shapiro for the
proposition that the Court had offered "varying rubrics" for when a
state ground is inadequate (p. 11) among other points.

The
heading of Part I of Dorf's brief begins, "The Court's jurisprudence
defining the adequacy inquiry for state rulings is well established,
clearly defined...." The "clearly defined" part of that proposition is
utter nonsense and is contradicted by Fallon's treatise, as noted above,
as well as Wright & Miller and most of the other commentary on the
subject. The "adequacy" jurisprudence is a mess and everyone knows it.

My proposal, to which the Dorf brief was opposed, was to dump the "rubric"
of "strictly or regularly followed" and instead adopt a rule along the
line suggested in Wright & Miller of fair notice of the proper
procedure for raising the objection. Dorf's brief, designated the brief
of "Federal Courts Scholars," does not mention that the preeminent
treatise in the field of federal procedure is opposed to his position.

So how did it end? In a unanimous opinion
by Justice Ginsburg, the Court kept the "regularly followed" language
in form but morphed it into Wright's "fair notice" in practice. A rule
does not cease to be "regularly followed" "simply because a court may
opt to bypass the [procedural default] assessment and summarily dismiss
a petition on the merits, if that is the easier path." Slip op. at 11.
Nor do occasional discretionary departures in the interests of
justice deprive a state rule of its "adequate" status. Id., at 11-12. So what does?

A state ground, no doubt, may be found inadequate when
"discretion has been exercised to impose novel and unforeseeable
requirements without fair or substantial support in prior state law . . .
." 16B C. Wright, A. Miller, & E. Cooper, Federal Practice and
Procedure §4026, p. 386 (2d ed. 1996) . . . .